[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
National Forests and NEPA Compliance
Distributed to TAP-RESOURCES, a free Internet Distribution List
(subscription requests to listproc@tap.org)
TAXPAYER ASSETS PROJECT - NATURAL RESOURCES POLICY ADVISORY
(please distribute freely)
TAP-RESOURCES
January 24,1996
* * * * * * * * * *
TAP recently submitted comments on the Forest Service's Rangeland
and Renewable Resources Planning Act (RPA) draft program for 1995. The
RPA draft program is a five year plan which outlines management of Forest
Service lands at the highest of three tiers (RPA, Region, Forest).
In the past, 1975, 1980, 1985, the Forest Service satisfied the
National Environmental Policy Act (NEPA) by completing an EIS on the draft
program. In 1990, however, the Forest Service's draft program had no
accompanying EIS. This was likely due to the Bush Administration's
philisophical aversion to programmatic EISs. The Clinton Administration
has followed Bush's lead on this and has failed to complete an
accompanying EIS on the '95 draft program.
The filing by TAP serves two purposes by providing: 1) comments on
the program, and 2) a petition for an EIS on the program.
There is little doubt that the RPA draft program represents a
major federal action with significant impacts on the environment
necessitating the completion of an EIS. Rather than using NEPA as a
device for injunctive relief, TAP would like to reintroduce public
participation into the RPA planning process.
Although the Forest Service has requested comments which would
appear to introduce public participation, they do not offer alternatives
as required by NEPA. By not offering an alternatives analysis
the public cannot fully address the issues discussed in the program.
Numerous other procedural shortfalls have resulted from the Forest
Service's noncompliance with NEPA.
If you are interested in pursuing these actions with TAP please
contact Ned Daly ( ned@tap.org ) or Todd Paglia ( tpaglia@tap.org ).
* * * * * * * * * *
January 17, 1996
United States Department of Agriculture
Forest Service
RPA Staff
201 14th Street, S.W.
Washington, DC 20250
Re: Comments on the 1995 RPA Program and Petition for an EIS
Dear Sir/Madam:
We are writing on behalf of the Center For Study of
Responsive Law's Taxpayer Assets Project(1) and
affiliated/cooperating environmental groups regarding the Forest
Service's 1995 RPA Program. We request that these comments be
entered in the agency's official record. This correspondence
shall serve as our Petition requesting that the Forest Service
complete an environmental impact statement ("EIS") on the 1995
RPA Program. Please respond to this Petition within the next 60
days.
NEPA REQUIRES THE COMPLETION OF AN EIS FOR THE RPA
The Forest Service's goals, as expressed in its World Wide
Web Home Page (http://www.fs.fed.us/land/RPA/), are clearly
laudatory. We applaud the efforts to attain President Clinton's
goal of sustainably managing our forests by the year 2000. Our
concern, rather, is with the Forest Service's means of
accomplishing those goals. For the reasons stated below, we will
decline to offer comments on the 1995 RPA Program at this time in
the hopes that a more effective opportunity will be offered
during the course of completing an EIS. During the EIS process
our comments will be far more valuable in the light of the Forest
Service's alternatives analysis and consideration of cumulative
impacts. Only in the context of the EIS process may our
comments, in concert with the informed comments of other
interested parties and agencies, be constructive. While we
understand that more localized EISs are completed by the Forest
Service, only the RPA Program provides an opportunity to examine
broad based ecosystem management and the management of adjoining
areas that, although subject to individual study, have not been
_____________________
1. The Center For Study of Responsive Law was established in
1968 by Ralph Nader and is a nonprofit, research and educational
organization. The Tax Payer Assets Project ("TAP") is an
undertaking of the Center for Study of Responsive Law. TAP
focuses its efforts on the management and control of publicly
owned assets.
-1-
______________________________________________________________________________
considered as a whole. An EIS on the RPA program would provide this
valuable opportunity.
The agency's Executive Summary of the RPA in its Home Page
states that "[t]he RPA Program reflects a _significant_ change in
the way the Forest Service considers and manages natural
resources." This dramatic alteration from past practices should
be subject to thorough study as well as public participation,
scrutiny, and comment. The consequences for our national forests
could not be more clearly at issue than with a new comprehensive
ecosystem management program such as RPA 1995. As you are aware,
the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.,
requires the completion of an EIS (including several
opportunities for public participation and comment) where major
federal action may significantly effect the human environment.(2)
The EIS process serves an important purpose as an action forcing
device intended to make an agency more informed of the
environmental ramifications of its actions, allowing it to
consider the effects of its proposal compared to alternatives.(3)
In addition, it is intended to bring agency conduct related to
environmental issues into the public domain with NEPA's
_____________________
2. 42 U.S.C. § 4332(2)(C). _See Marsh v. Oregon Natural
Resources_, 490 U.S. 360, 371 (1989) ("NEPA promotes its sweeping
commitment to 'prevent or eliminate damage to the environment and
biosphere' by focusing government and public attention on the
environmental effects of proposed agency action.") (quoting 42
U.S.C. § 4321).
3. NEPA specifically states that one of the primary purposes of
an EIS is to consider "alternatives to the proposed action . . .
." 42 U.S.C. § 4332(2)(C)(iii). _See also Roosevelt Campobello
Int'l Park Comm. v. U.S. EPA_, 684 F.2d 1041, 1045-46 (1st Cir.
1982) ("The primary procedural mechanism embodied in NEPA is the
requirement that an agency prepare 'a detailed statement'
discussing, inter alia, 'alternatives to the proposed action', 42
U.S.C. § 4332(2) (C), requiring an agency to discuss alternatives
within the EIS serves numerous goals."); _California v. Block_,
690 F.2d 753, 766 (9th Cir. 1982) ("NEPA requires a 'detailed
statement . . . on . . . alternatives to the proposed action . .
. .'") (quoting 42 U.S.C. § 4332(2)(C)); _Monroe County
Preservation Council, Inc. v. Volpe_, 472 F.2d 693, 699-700 (2d
Cir. 1972).
-2-
______________________________________________________________________________
requirements for circulation and comment on EISs and other
environmental documents.(4) These important purposes will be
ignored if the Forest Service fails to comply with NEPA by
shuttling the 1995 RPA Program around the act's specific
requirements. The RPA has previously been subject to an EIS in
1975, 1980, and 1985. Considering the dramatic changes proposed
for RPA 1995, NEPA requires that an EIS be completed. In
addition to the clear statutory duty, the Forest Service is also
under a continuing duty pursuant to the Stipulation entered into
with the Natural Resource Defense Council to prepare an EIS on
the RPA Program.(5)
RPA 1995 is precisely the kind of program to which NEPA
application was intended. It clearly involves a major federal
action and the existence of significant environmental impacts is
equally obvious. As the Forest Service made apparent in its
Executive Summary of the program: "[RPA 1995] is an approach to
natural resource management that will require an unprecedented
measure of both willingness and ability--a willingness to move
beyond traditional techniques, strategies, and perspectives, and
an ability to focus on a broad range of environmental and social
values, and to consider changes through space and time." The
scope, innovation, and potential impact of the program as well as
the strong public interest values involved, i.e., the interest of
the public in the management of its national forest lands,
require that the program be brought out of the agency's closet
into the sunlight provided by NEPA's open and thorough EIS
mandate.
_____________________
4. _North Buckhead Civic Assn. v. Skinner_, 903 F.2d 1533, 1540
(11th Cir. 1990) ("Most importantly, the detailed EIS also serves
as a springboard for public comment and incorporates the critical
views of other federal, state, and local agencies. The document
offers these bodies notice of the program's expected
environmental consequences and the opportunity to plan and
implement corrective measures in a timely manner.");
_Environmental Defense Fund, Inc. v. Hoffman_, 566 F.2d 1060,
1072 n.19 (8th Cir. 1977) ("We recognize that the comment stage
is of critical importance in the decisionmaking process under
NEPA.").
5. Stipulation Agreement between the Natural Resources Defense
Council, the Department of Agriculture, and the National Forest
Products Association, U.S. District Court for the District of
Columbia, CA No. 74-585, January 17, 1975.
-3-
______________________________________________________________________________
THE FOREST SERVICE'S ATTORNEYS AGREE WITH OUR POSITION
We are not unique in coming to this conclusion. Documents
obtained through FOIA requests indicate that the Forest Service
staff came to the same conclusion. The RPA position paper
prepared by the RPA staff with input from the Office of General
Council determined that the program would not require an EIS,
which on its own is a specious assertion, but it went on to note
that using the program as:
the vehicle for establishing official policy which
would result in or substantially alter agency programs, or
the formal plan which would prescribe alternative uses
of federal resources, upon which future Agency actions would
be based, or
a vehicle for implementing a specific policy or plan,
_could shift the RPA Program to a major federal action.
A formal EIS process would then become advisable_.(5)
USDA attorneys echoed this concern in a similarly obtained memo
discussing the 1990 RPA (attached as Exhibit C). The memo
states:
Because the Forest Service has changed the nature of
the decision being made in the Program, NEPA compliance must
be reassessed in light of the new circumstances. . . . [T]he
legal risk associated with not preparing an EIS is
_increased._(6)
The RPA Program is clearly subject to NEPA and the EIS
requirement as the Forest Service's own attorneys have attested.
The Program is a significant action and it formulates a
definitive policy of ecosystem management and attaining President
Clinton's goal of sustainable management by the year 2000. It
serves nobody's interest to try to avoid the requirements of NEPA
and waste time, resources, and money in litigation. In addition,
the Clinton Administration has a great interest in avoiding an
_____________________
5. RPA - NEPA Consideration, 1995 RPA Program, Prepared by RPA
Staff and Office of General Council, at 4 (emphasis added).
6. U.S. Department of Agriculture Internal Memorandum, 1990 RPA
and NEPA Obligations, at 1-2 (emphasis added).
-5-
______________________________________________________________________________
anti-environmental position so close to an election year. The
environment is one of the Clinton Administration's strong points
and the value in keeping the RPA behind closed doors away from
public input and scrutiny, is not worth the risk due to the
appearance, and rightly so, of not caring about properly dealing
with something as important as the overarching strategy for
managing our highly valued forest lands.
NEPA APPLIES TO ANY SIGNIFICANT FEDERAL ACTION, NOT JUST THOSE
CONSIDERED NEGATIVE
It is important to note that NEPA applies even if the impact
of RPA 1995 is intended to be an entirely positive action from an
environmental perspective. The purpose of NEPA is to determine
the environmental consequences, negative or positive. The point
is producing accurate environmental information which goes
through NEPA's public notice and comment requirements and
provides a basis for environmentally informed agency
decisionmaking. A proposal may seem environmentally beneficial,
but only further study and analysis will provide the agency and
the public with completely accurate information, and this is what
the courts insist upon. Consider the Eleventh Circuit's decision
in _National Wildlife Federation v. Marsh_. The court stated in
the context of a supplemental EIS "that even if post-EIS changes
in a project are beneficial to the environmental impact, if those
changes are significant, a supplemental statement is required . .
. ."(7) In a case raising similar issues, the First Circuit
believed that the environmental documentation was too cursory and
there was no firm basis on which to determine whether the change
would be environmentally positive or negative and by how much.
The court stated that "a supplement[al EIS] would describe the
magnitude of the change in likely environmental harms."(8) Thus,
the EIS requirement has been consistently used to resolve any
probable doubts about an action's impacts regardless of the
agency's intent or hope that it will benefit environmental
values.
_____________________
7. _National Wildlife Federation v. Marsh_, 721 F.2d 767, 782
(11th Cir. 1983)(emphasis added).
8. _Massachusetts v. Watt_, 716 F.2d 946, 951 (1st Cir. 1983).
-6-
______________________________________________________________________________
Federal regulations promulgated by CEQ, which are binding on
all agencies,(9) similarly are concerned with all significant
impacts. In determining what is meant by the term "significant,"
as that word is used by CEQ under NEPA, an evaluation must be
made of the context and intensity of the project or program. 40
C.F.R. § 1508.27. The intensity of the action or new information
is determined by examining "[i]mpacts that may be both beneficial
and adverse." Id. at § 1508.27(b)(1) (emphasis added). The
regulations state: "A significant effect may exist even if the
Federal agency believes that on balance the effect will be
beneficial." Id. (emphasis added). Thus, according to CEQ's
current regulations, the EIS requirement is to be fulfilled where
significant actions occur impacting the environment, whether the
significant effect is intended or thought to be environmentally
positive or negative.
The courts and CEQ have focused on NEPA's purpose of
ensuring that an agency examine the best data possible in order
to make informed environmental choices, regardless of the
agency's intent. These interests would be served by the
completion of an EIS, and NEPA requires such. The 1995 RPA
Program is a significant federal action aimed at improving
management of the nation's forest lands. Only an EIS, however,
with full public comment and the participation of other agencies,
will satisfy the Forest Service's obligations under NEPA. The
EIS process will bring the 1995 RPA Program out into the light
and allow the Forest Service to receive input from a variety of
informed persons and organizations, while serving the additional
purpose of providing the public with a forum to express their
views on what options presented by the Forest Service best serve
the national interest.
_____________________
9. _See Robertson v. Methow Valley Citizens Council_, 490 U.S.
332, 354 (1989) ("In 1977, President Carter directed that CEQ
promulgate binding regulations implementing the procedural
provisions of NEPA.") (citing Executive Order No. 11991, 3 C.F.R.
§ 123) (1977)). _See also Andrus v. Sierra Club_, 442 U.S. 347,
358 (1979) (holding that "CEQ's interpretation of NEPA is
entitled to substantial deference.").
-7-
______________________________________________________________________________
CONCLUSION
Therefore, we respectfully request that the Forest Service
put the 1995 RPA Program through the required NEPA process in
order to comply with that statute's mandate and ensure that the
Forest Service has considered all the possible alternatives and
the most accurate information in formulating its 1995 RPA
Program. Again, this is an important matter for us and our
affiliated/cooperating environmental groups. We believe that the
law and sound public policy, to say nothing of the Clinton
Administration's standing in the environmental community,
requires that the 1995 RPA Program be subject to the full NEPA
process.
Submitted,
January 17, 1996
________________________ ________________________
Todd J. Paglia Edward J. Daly
Attorney Public Policy Analyst
Center for Study of Center for Study of
Responsive Law Responsive Law
Taxpayer Assets Project Taxpayer Assets Project
P.O. Box 19367 P.O. Box 19367
Washington, DC 20036 Washington, DC 20036
(202) 387-8030 (202) 387-8030
--------------------------------------------------------------
TAP-RESOURCES is an Internet Distribution List provided by the
Taxpayer Assets Project (TAP). TAP was founded by Ralph Nader to
monitor the management of government property, including
information systems and data, government funded R&D, spectrum,
allocation, public lands and mineral resources, and other
government assets. TAP-RESOURCES reports on TAP activities
relating to natural resources policy. To obtain further
information about TAP send a note to tap@tap.org.
Subscription requests to: listproc@tap.org with the
message: subscribe tap-resources yourfirstname yourlastname
---------------------------------------------------------------
Taxpayer Assets Project; P.O. Box 19367, Washington, DC 20036
v. 202/387-8030; f. 202/234-5176; internet: tap@tap.org